The Malawi Supreme Court of Appeal has granted former president Peter Mutharika’s personal bodyguard Norman Chisale an order stopping proceedings in a case where he is accused of using a fake certificate pending appeal.
The judgement followed an application Chisale made to the Malawi Supreme Court of Appeal arguing that there were procedural and substantive issues bordering on how the magistrate court was conducting the trial.
Court documents show that in the course of trial, the State applied to amend the charge sheet, an arrangement Chisale, through his lawyers, opposed. The State was granted its wish to amend the charge sheet.
In his application for a stay order pending appeal in the Supreme Court, Chisale questioned the legality of the State reopening its case after it was closed and asked the appeal court to resolve the anomalies.
Delivering the ruling dated December 17 2021, Justice of Appeal Lovemore Chikopa said the questions raised by Chisale were sufficiently serious and important.
He said he granted Chisale both the stay order and a go-ahead to proceed with the judicial review because proceeding with hearing of the case would be discriminatory and constitutionally untenable.
Chikopa said: “We are of course aware that the State thinks a further review and stay will only serve to delay the proceedings. But just in case the State has forgotten, the genesis of the current situation has very little, most likely nothing, to do with the applicant.
“This matter would not be where it is now if those that sought the amendment and those that granted it had the presence of mind to fully comply with the law. The applicant should not be blamed for seeking to take the review to its logical conclusion, namely to the SCA [Supreme Court of Appeal].”
The Justice of Appeal also stressed that the Constitution provides for a fair trial which includes the right to have recourse, by way of appeal or review, to a higher court, therefore, Chisale was justified in his approach to the higher court.
Director of Public Prosecutions (DPP) Steve Kayuni could not be reached for his reaction on Monday, but Chisale’s lawyer Chancy Gondwe said the ruling vindicated his client.
He said: “Criminal litigation operates in a straight line. Once the State has closed its case, there is no room for reopening their case. The magistrate’s court reopened their case, which we found to be strange and alien to our criminal practice.”
A similar application was filed in High Court Judge Annabel Mtalimanja’s chamber, but was dismissed.
Chisale was charged with three counts, namely impersonation of a person named in a certificate contrary to Section 391 as read with Section 358 of the Penal Code, presenting false information to a person employed in the public service contrary to Section 122 of the Penal Code and intimidation contrary to Section 88 of the Penal Code.